RomneyCare and the limits of government power

Conservatives dedicated to the repeal of ObamaCare have always worried that Mitt Romney’s health care history, as governor of Massachusetts, would compromise both his loyalty to the cause of repeal, and his ability to defeat Barack Obama in the general election.

As to the former, Romney has said, clearly and repeatedly, that he intends to repeal ObamaCare. He has made this declaration during virtually all of the Republican presidential debates. The question is whether voters believe his loyalty to this cause is both sincere and unshakeable. Those are actually two different, equally important questions.

When it comes to the general election, the fear is that Obama will point out the many similarities between ObamaCare and RomneyCare, effectively taking the ObamaCare issue off the table. The response to this concern, from both Romney and his supporters, is that RomneyCare is acceptable because it is a state program, and it includes provisions – most notably the “individual mandate” that citizens must purchase health insurance, or else pay a penalty – which are unconstitutional when implemented by the federal government.

Leaving the Constitution out of it for the moment, it’s reasonable to suggest that the states should be allowed to do many things the federal government cannot, because unhappy citizens can leave a state if they strongly disagree with its policies. Romney often points out that his health care program remains popular in Massachusetts. People who really hate it can always decamp for another state. That option is not available to escape from ObamaCare, which can only be avoided with a special waiver granted by the Administration to those it deems worthy.

But there’s a huge problem with Romney’s “OK for the states, but an outrage for Washington” defense. The individual mandate is about to face a Supreme Court challenge. By the time the 2012 elections are held, one of three decisions will have been reached:

1. The individual mandate will be held constitutionally acceptable after all. This would cause the bulk of Romney’s argument against ObamaCare to collapse. He could still criticize it on practical grounds, but his often-stated case that the federal government cannot impose such mandates will be gone. This will also fundamentally alter the Constitution itself, effectively granting the federal government almost unlimited power to impose requirements upon the population, provided it can cite the need to control costs which are “shared” by the entire public. If you thought Congress was able to drive a truck through the interstate commerce clause, wait until you get a load of the freight trains that blast through the “individual mandate” loophole. The federalist argument Romney relies upon will have been shredded.

2. The individual mandate will be held unconstitutional, but “severed” from the rest of ObamaCare, which will lurch onward despite having a stake driven through its heart. While this makes repeal of ObamaCare more urgent, since it will have lost its primary financial justification, it also makes Romney’s case against Obama weaker, because he needs the constitutionality issue to distinguish ObamaCare from RomneyCare.

3. The Supreme Court will rule ObamaCare unconstitutional in its entirety. The odds seem somewhat against this happy outcome. Presumably Obama would run hard on finding a way to re-institute his signature program without its unconstitutional mandate, both because he believes in the central government control of health insurance, and because he cannot politically afford to leave the issue with millions of dollars spent, and many thousands of jobs destroyed, in the service of a program erased by the Supreme Court. If Obama runs on restoring a federal health-care plan retooled to pass Constitutional muster, Romney would be in a uniquely bad position to oppose him, since Obama would now be able to say he really does want to bring Mitt Romney’s brilliant health care reforms to the entire nation.

The broader problem Romney, and all of the GOP presidential candidates, are facing is that over the past fifty years, a large portion of the American public has come to believe there should not be arbitrary limits on the power of government.

This is a dangerous inversion of the principles of federalism and limited government. As the government becomes more remote from individual citizens, and its authority becomes more difficult to escape, it should work harder to justify its power.

Instead, in the postwar era, the idea of prohibiting certain benevolent actions to the federal government, merely because the Constitution did not grant the necessary authority, began looking silly to an increasing number of people. Increasingly expansive Supreme Court decisions, disabling the limits of federal power, contributed to this trend. Allowing ObamaCare’s individual mandate to survive constitutional challenge would be the most expansive decision ever, providing a legal shovel to bury the last vestiges of federalism.

Why shouldn’t the central government do anything, and everything, to make our lives better? People are still willing to hear arguments against individual programs as unwise, or unaffordable… although magic mountains of deficit money make “unaffordable” ring less powerfully in their ears. They’re increasingly unwilling to consider beneficial federal programs unacceptable, simply because dead guys in powdered wigs forgot to fill out the necessary paperwork authorizing them, in an age of quill pens and horse-drawn carriages.

ObamaCare’s passage perfectly encapsulates the problem. No one was willing to wait until its constitutionality could be determined in advance. The titanic law was passed in a frenzied rush, with dead-of-night votes, its pages both unread and incomplete. Only now, years later, will we begin a serious and binding discussion over whether this was something the federal government was permitted to do. There’s a good chance the rest of the program will survive the Court striking down its central funding mechanism, the individual mandate… without which the entire program was completely nonsensical, and never would have passed even the horrendous Democrat Congress, which the Tea Party rescued us from.

Instead of the leviathan State justifying its power grabs, too many citizens expect those who would restrain the State to justify every link in the chains they would forge. James Madison said, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.” By the time our next presidential election rolls around, it might be impossible to lay a finger on any article of the atrophied Constitution that could prevent such expenses.

That will be bad news for Mitt Romney, if he’s the candidate who has to explain why ObamaCare is a curse, while RomneyCare is a blessing.